Notre Dame Law Review Volume 89 | Issue 3 Article 8 2-2014 The Rule of Law and the Judicial Function in the World Today Diarmuid F. O’Scannlain United States Court of Appeals for the Ninth Circuit Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Courts Commons, Judges Commons, Jurisdiction Commons, and the Rule of Law Commons Recommended Citation 89 Notre Dame L. Rev. 1383 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\89-3\NDL308.txt unknown Seq: 1 11-FEB-14 8:16 LECTURE THE RULE OF LAW AND THE JUDICIAL FUNCTION IN THE WORLD TODAY Diarmuid F. O’Scannlain* INTRODUCTION Good evening.1 It is a pleasure to be here at the University of Notre Dame London Law Centre, and I am deeply honored to have been asked to speak from the “Judge James J. Clynes, Jr., Visiting Chair in the Ethics of Litigation within the Judicial Process.” The ethics of litigation, of course, is not just for practitioners. It is also for judges. It is for that reason that the Clynes Chair has, as one of its concerns, the “practice of handling and resolv- ing cases, both at the trial and appellate levels.” While I wish to offer today some observations on that practice, I will not address it directly and at once, as would be my tendency as a judge. Rather—this being a scholarly affair—I will do my best to proceed as would an academic, taking up the question obliquely, incrementally, and only after addressing a more abstract subject to which I have lately been giving much thought: namely, that universally invoked term the Rule of Law. I The world’s oldest written constitution still in effect has many inspiring lines, but perhaps the one that most stirs the souls of the patriotic appears in © 2014 Diarmuid F. O’Scannlain. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * United States Circuit Judge, United States Court of Appeals for the Ninth Circuit. Chairman, Committee on International Judicial Relations of the Judicial Conference of the United States. Judge James J. Clynes, Jr., Visiting Chair in the Ethics of Litigation within the Judicial Process, University of Notre Dame Law School. Lecture delivered on February 21, 2013, at the University of Notre Dame–London Law Centre. 1 The views expressed herein are my own and do not necessarily reflect the view of my colleagues, the United States Court of Appeals for the Ninth Circuit, or the Judicial Con- ference of the United States. I wish to acknowledge, with thanks, the assistance of Ryan Walsh, my law clerk, in preparing these remarks. 1383 \\jciprod01\productn\N\NDL\89-3\NDL308.txt unknown Seq: 2 11-FEB-14 8:16 1384 notre dame law review [vol. 89:3 Article 30.2 Delineating a familiar separation of powers, that Article forbids the legislative, executive, and judicial branches from swapping or mixing functions. “[T]o that end”—and here’s the line—“it may be a government of laws and not of men.”3 John Adams, the author of that line and most of the rest of the Constitution of the Commonwealth of Massachusetts, penned those words in 1779, eight years before the adoption of the second oldest written constitution still in effect. Writing just over twenty years later, the great Chief Justice John Marshall would affirm, in Marbury v. Madison, that “[t]he government of the United States has been emphatically termed a gov- ernment of laws, and not of men.”4 Of course, neither Adams nor Marshall was on to something new with this “government of laws” notion. The idea that law, rather than certain men, ought to govern men—or, put differently, that men ought to self-govern through law—is quite old. In Western civiliza- tion, it is as old as political philosophy itself. We invoke it still today, perhaps more vociferously than ever before. From the lips of Socrates and the quill of Chief Justice Marshall, the principle of the Rule of Law now takes center stage in the theater of international relations. This is no doubt because, as a global community, we are painfully aware that the Rule of Law has had some bad years of late—indeed, a bad century. In the concentration camps of Nazi Germany, the gulags of Soviet Russia, the killing fields of Cambodia, and the genocidal wastelands of Kosovo, the Rule of Law was nowhere to be found (though perhaps, with enough searching, one could uncover its remains—it has a way, after all, of being tyranny’s first victim). The nightmare of the twentieth century having passed, we naturally wish to do all that we can to ensure that such tragedies never happen again. As most recognize, that project begins and ends with understanding, spreading, and strengthening the Rule of Law in every corner of the globe. A Spearheading the rhetorical effort on this front lately has been, perhaps surprisingly to some, the United Nations itself. Last September, I had the fortune of attending the historic High Level Meeting on the Rule of Law of the 67th Session of the U.N. General Assembly. At that session, leaders from more than eighty countries gathered to reiterate not only their own commit- ments to the Rule of Law but to reaffirm our commitment as a global com- munity to that principle. To that end, the General Assembly adopted a declaration.5 “[T]he rule of law,” it reads in part, “applies to all States equally” and ought to “accord predictability and legitimacy to their actions.”6 2MASS. CONST. pt. 1, art. XXX. 3 Id. (emphasis added). 4 5 U.S. (1 Cranch) 137, 163 (1803). 5 G.A. Res. 67/1, U.N. Doc. A/RES/67/1 (Nov. 30, 2012). 6 Id. ¶ 2. \\jciprod01\productn\N\NDL\89-3\NDL308.txt unknown Seq: 3 11-FEB-14 8:16 2014] t h e rule of law and the judicial function 1385 The Rule of Law, it also says, entails democracy, independent judiciaries, and the securing of human rights.7 This is heartening language. Still, it is just language. And perhaps, given the events surrounding the meeting, we ought not to be all that encouraged by it. After all, while diplomats in New York were busy reading listlessly from their prepared statements, the death toll in Syria climbed to 25,0008 and, just a week before, terrorists in Benghazi, Libya destroyed an American diplomatic mission.9 In addition, Iranian President Mahmoud Ahmadinejad, billed to speak at the U.N. that day on the very subject of the Rule of Law, took the opportunity instead to condemn the West and repeat- edly to insult Israel.10 To many commentators, these were indications that, indeed, something more than high-soaring language was necessary to edify the Rule of Law worldwide. As a writer for The Guardian newspaper put it, “in the end, world leaders fell short. After more than a year of planning, all they could muster was another day of talk.”11 He continued, “It did not have to be this way. Back in March, [U.N. Secretary General] Ban Ki-moon had pro- posed much more. The secretary general [had] called for clear goals, with benchmarks to measure progress.”12 Instead, all we got was a flimsy, content-light “declaration.”13 Louise Arbour, former U.N. High Commissioner for Human Rights, also expressed bewilderment, but she offered a different diagnosis.14 The prob- lem, she wrote, was not that the U.N. or the Secretary General had lacked the spine to take concrete action toward the advancement of the Rule of Law. It was, instead, that the whole idea of the Rule of Law, framed so abstractly and described so generically, is a non-starter.15 “Everyone believes in [the Rule of Law] and wants to promote it. But . it is doubtful that states even agree what the term really means,” she argues.16 “Do-gooders and democrats try to convince dictators to improve [the] rule of law,” she continues, “while repres- sive regimes are more than happy to refer to ‘rule of law’ as they crack down on dissent at home.”17 In this critique, the Rule of Law is nothing more than an ideological Rorschach Test. A totalitarian looks at it and sees the need for 7 Id. ¶¶ 5, 13. 8 James A. Goldston, UN Meeting on the Rule of Law Was Just Another Day of Talk, THE GUARDIAN (Sept. 26, 2012), http://www.theguardian.com/law/2012/sep/26/united- nations-rule-of-law-talk. 9 Greg Miller & Michael Birnbaum, Chaos at U.S. Consulate in Libya, WASH. POST, Sept. 13, 2012, at A1. 10 Rick Gladstone & Neil MacFarquhar, Iran’s President Spreads the Outrage in New York, N.Y. TIMES, Sept. 25, 2012, at A9. 11 Goldston, supra note 8. 12 Id. 13 Id. 14 Louise Arbour, The Rule of Law, N.Y. TIMES (Sept. 26, 2012), http://www.nytimes. com/2012/09/27/opinion/UN-general-assembly-on-the-rule-of-law.html. 15 Id. 16 Id. (emphasis added). 17 Id. \\jciprod01\productn\N\NDL\89-3\NDL308.txt unknown Seq: 4 11-FEB-14 8:16 1386 notre dame law review [vol.